EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS


Software Patents and the FTC’s Red Herring

Posted in Patents at 11:24 am by Dr. Roy Schestowitz

Red herring

Summary: The core problem with the USPTO remains unchallenged because the wrong problem — or a symptom rather — is being described and slowly addressed

The USPTO has been harbouring a culture of patenting, motivated for the most part by large corporations’ desire to have mechanisms of protectionism in place, barring or weighing down emerging competition (sometimes domestic but especially foreign). The illusion of a ‘free market’ should be warped to speak of unregulated markets where large corporations are free to do as they please, always assured that the government that they pay will protect them when the need arises, be it by patent monopolies or even espionage overseas (see Cablegate on Boeing for examples). In this culture where offices like the patent office are run by people who came from large corporations (revolving doors) it is not surprising that even so-called ‘reforms’ are structured to benefit large corporations.

According to this report from the corporate media, the US government (a branch of it) “said it created a pilot program in which its six administrative judges will in some cases determine within 100 days if companies that sue for infringement have adequate U.S. production, research or licensing to use the court.”

“In this culture where offices like the patent office are run by people who came from large corporations (revolving doors) it is not surprising that even so-called ‘reforms’ are structured to benefit large corporations.”This is not the right thing to do [1, 2, 3, 4]. What they need to do is assess the quality and especially the scope of the patents, irrespective of the plaintiff. They are doing a sort of ad hominem disservice by looking at a real issue which is nevertheless not the core issue.

Well, citing the pro-software patents blog that lobbies on scope and defends trolls, Groklaw names David Kappos, former head of the USPTO and an IBM faithful. Pamela Jones writes: “This is why Kappos failed. He misunderstood what the criticism of the patent system is about. It has *nothing* to do with a reluctance to pay. It’s about protecting innovation in a system that has allowed such broad functional claiming, blocking off entire areas of software development, that no one can innovate safely any more. That damages the patent system and the economy and it brings innovation to a halt. The rest is ideology and daydreams.”

The FTC is not going to resolve the overall problem even if it tackles patent trolls. The problem is not correctly identified, just a symptom of this problem. As some wise person noted the other day, there is no good understanding of these issues, so the commission will fail. To quote:

First, it notes that the chairwoman of the FTC is expected to recommend an investigation of patent trolls (or “frivolous patent lawsuits” as specified in the headline). The promised further action has not been confirmed, so we will have to wait and see.

The Times then slid around the “patent troll” name and henceforth called them by the less pejorative “patent-assertion entity” or PAE. Still, adding some weight to the promise of action was the “several executive orders” from President Obama “directing executive agencies to take steps to take steps to ‘protect innovators from frivolous litigation.’”

The article goes on to describe patent trolls as typically having no operations other than collecting royalties on patents and says that they accounted for more than 60 percent of the roughly 4,000 patent lawsuits filed last year, up from 29 percent two years earlier.

But then the article notes one company that calls itself a “patent-licensing company,” raising the question of “what’s in a name”.

In any case, the Times expects the full commission (two Democrats and two Republicans, with one seat empty), to approve a study.

What they fail to see is that a large company like Microsoft is also engaged in patent assertion. Some say Microsoft makes billions of dollars this way, at the expense of those who actually sell products that customers want. It makes Microsoft not all that different from patent trolls. Sometimes Microsoft uses a proxy like Vringo, which Troll Tracker describes as follows today:

But is that really what Vringo is doing? Are they taking someone’s IP and making something useful out of it, because that person/company cannot? Or are they taking patents that were sold to them by, oh, I dunno, Microsoft just for instance, and using them as a bully stick with which to beat other companies who have already manufactured something of good use and likely didn’t even infringe but will settle so they don’t have to litigate? That’s what would be a bad thing, right?

To get an example of classic patent trolls, see this new article from Joe Mullin, who says that “With so many patents out there claiming rights to basic Web-based technologies, at this point there aren’t many businesses in America that are unaffected by so-called “patent trolls.” But one troll, ArrivalStar, found a fresh set of targets that earned it serious scorn: public transit systems.”

Here is another article about it. “For several years now,” it says, “a curious company called ArrivalStar – which has no website, appears to produce nothing, and is oddly registered in Luxembourg – has been systematically suing public transit agencies in the United States. As we wrote last April, the company holds a collection of dubious patents tied to the technology of tracking vehicles in motion. And it has been using them to claim patent infringement by transit agencies that … track vehicles in motion.”

“At the end of the day the largest corporations will benefit and everyone else will suffer even more.”This is starting to get a lot of national coverage.Public transit agencies across US say they’re being squeezed by questionable patent lawsuits, according to the Washington Post. Another article says that “A patent holding company has filed eight lawsuits against U.S. banking institutions in recent weeks, claiming patent infringement on products and services related to security and electronic banking.”

What makes this troll a problem is that it hurts the rich, and therefore politicians will go after it with great passion. To Quote further: “In some cases, the patents mentioned in these suits are alleged to cover basic banking functions and features used in ATM and online-banking transactions. In other cases, even cryptography methods used to conform to security standards, such as the Payment Card Industry Data Security Standard, have been brought into question, Denaro says.”

A simple ban on software and business method patents would resolve this, but the government goes after those entities not because of their patents but because of their business model. What a red herring this is. At the end of the day the largest corporations will benefit and everyone else will suffer even more.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New

  1. Željko Topić Tries to Do to EPO Staff What He Did in Croatia, Now Crushes Staff Assembly in The Hague

    Reminder to European Patent Office (EPO) staff that the EPO's management has a history of union-busting and serious violations of the rules; a call to join protests later today and later this week

  2. The Spanish EPO Scandal - Part I

    How García-Escudero Marquez, the sister of a Spanish Senate speaker, got controversially appointed to succeed the (now) EPO's Vice-President Alberto Casado Cerviño

  3. Media Alert: IAM 'Magazine' Does Not Protect Sources

    An important discussion regarding the role of IAM (Intellectual Asset Management) in the debate about EPO abuses

  4. Richard Stallman and Eben Moglen on the Microsoft-Red Hat Deal

    Founder of Free software and author of the GPL (respectively) comment on what Microsoft and Red Hat have done regarding patents

  5. Links 30/11/2015: Linux 4.4 RC3, Zaragoza Moving to FOSS

    Links for the day

  6. Public Protests by European Patent Office (EPO) Staff Weaken the EPO's Attacks on the Media

    Where things stand when it comes to the EPO's standoff against publications and why it's advisable for EPO staff to stage standoffs against their high-level management, which is behind a covert crackdown on independent media (while greasing up corporate media)

  7. Why the European Patent Office Cannot Really Sue and Why It's All -- More Likely Than Not -- Just SLAPP

    Legal analysis by various people explains why the EPO's attack dogs are all bark but no bite when it comes to threats against publishers

  8. How the EPO Twisted Defamation Law in a Failed Bid to Silence Techrights

    Using external legal firms (not the EPO's own lawyers), the EPO has been trying -- and failing -- to silence prominent critics

  9. East Texas and Its Cautionary Tale: Software Patents Lead to Patent Trolls

    Lessons from US media, which focuses on the dire situation in Texas courts, and how these relate to the practice of granting patents on software (the patent trolls' favourite weapon)

  10. The Latest EPO Spin: Staff Protesters Compared to 'Anti-Patent Campaigners' or 'Against UPC'

    Attempts to characterise legitimate complaints about the EPO's management as just an effort to derail the patent office itself, or even the patent system (spin courtesy of EPO and its media friends at IAM)

  11. The Serious Implication of Controversial FTI Consulting Contract: Every Press Article About EPO Could Have Been Paid for by EPO

    With nearly one million dollars dedicated in just one single year to reputation laundering, one can imagine that a lot of media coverage won't be objective, or just be synthetic EPO promotion, seeded by the EPO or its peripheral PR agents

  12. EPO: We Have Always Been at War With Europe (or Europeans)

    The European Patent Office (EPO) with its dubious attacks on free speech inside Europe further unveiled for the European public to see (as well as the international community, which oughtn't show any respect to the EPO, a de facto tyranny at the heart of Europe)

  13. What Everyone Needs to Know About the EPO's New War on Journalism

    A detailed list of facts or observations regarding the EPO's newfound love for censorship, even imposed on outside entities, including bloggers (part one of several to come)

  14. EPO Did Not Want to Take Down One Techrights Article, It Wanted to Take Down Many Articles Using Intimidation, SLAPPing, and Psychological Manipulation Late on a Friday Night

    Recalling the dirty tactics by which the European Patent Office sought to remove criticism of its dirty secret deals with large corporations, for whom it made available and was increasingly offering preferential treatment

  15. The European Private Office: What Was Once a Public Service is Now Crony Capitalism With Private Contractors

    The increasing privatisation of the European Patent Office (EPO), resembling what happens in the UK to the NHS, shows that the real goal is to crush the quality of the service and instead serve a bunch of rich and powerful interests, in defiance of the original goals of this well-funded (by taxpayers) organisation

  16. Microsoft Once Again Disregards People's Settings and Abuses Them, Again Pretends It's Just an Accident

    A conceited corporation, Microsoft, shows not only that it exploits its botnet to forcibly download massive binaries without consent but also that it vainly overrides people's privacy settings to spy on these people, sometimes with help from malicious hardware vendors such as Dell or Lenovo

  17. When the EPO Liaised With Capone (Literally) to Silence Bloggers, Delete Articles

    A dissection of the EPO's current media strategy, which involves not only funneling money into the media but also actively silencing opposing views

  18. Blogger Who Wrote About the EPO's Abuses Retires

    Bloggers' independent rebuttal capability against a media apparatus that is deep in the EPO's pocket is greatly diminished as Jeremy Phillips suddenly retires

  19. Leaked: EPO Award of €880,000 “in Order to Address the Media Presence of the EPO” (Reputation Laundering)

    The European Patent Office, a public body, wastes extravagant amounts of money on public relations (for 'damage control', like FIFA's) in an effort to undermine critics, not only among staff (internally) but also among the media (externally)

  20. Links 27/11/2015: KDE Plasma 5.5 Plans, Oracle Linux 7.2

    Links for the day

  21. Documents Needed: Contract or Information About EPO PR/Media Campaign to Mislead the World

    Rumour that the EPO spends almost as much as a million US dollars “with some selected press agencies to refurbish the image of the EPO”

  22. Guest Post: The EPO, EPC, Unitary Patent and the Money Issue

    Remarks on the Unitary Patent (UP) and the lesser-known aspects of the EPO and EPC, where the “real issue is money, about which very little is discussed in public...”

  23. Saving the Integrity of the European Patent Office (EPO)

    Some timely perspective on what's needed at the European Patent Office, which was detabilised by 'virtue' of making tyrants its official figureheads

  24. A Call for Bloggers and Journalists: Did EPO Intimidate and Threaten You Too? Please Speak Out.

    An effort to discover just how many people out there have been subjected to censorship and/or self-censorship by EPO aggression against the media

  25. European Patent Office (EPO) a “Kingdom Above the EU Countries, a Tyranny With ZERO Accountability”

    Criticism of the EPO's thuggish behaviour and endless efforts to crush dissenting voices by all means available, even when these means are in clear violation of international or European laws

  26. Links 26/11/2015: The $5 Raspberry Pi Zero, Running Sans Systemd Gets Hard

    Links for the day

  27. EPO Management Needs to Finally Recognise That It Itself is the Issue, Not the Staff or the Unions

    A showing of dissent even from the representatives whom the EPO tightly controls and why the latest union-busting goes a lot further than most people realise

  28. Even the EPO Central Staff Committee is Unhappy With EPO Management

    The questions asked by the Central Staff Committee shared for the public to see that not only a single union is concerned about the management's behaviour

  29. The Broken Window Economics of Patent Trolls Are Already Coming to Europe

    The plague which is widely known as patent trolls (non-practicing entities that prey on practicing companies) is being spread to Europe, owing in part to misguided policies and patent maximalists

  30. Debunking the EPO's Latest Marketing Nonsense From Les Échos and More on Benoît Battistelli's Nastygram to French Politician

    Our detailed remarks about French brainwash from the EPO's media partner (with Benoît Battistelli extensively quoted) and the concerns increasingly raised by French politicians, who urge for national or even continental intervention


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time


Recent Posts